February 13, 2010
Aggregate Litigation: Critical Perspectives
On behalf of GW's James F. Humphreys Complex Litigation Center, Professor Roger Trangsrud has organized a conference on the American Law Institute's Principles of the Law of Aggregate Litigation. It will be held at George Washington University Law School on March 12, 2010. The four ALI reporters (Sam Issacharoff, Richard Nagareda, Bob Klonoff, and Charlie Silver) will serve as panel moderators. More information on registration (which is free, but space is limited) can be found at: http://www.law.gwu.edu/News/20092010Events/Pages/AggregateLitigationCriticalPerspectives.aspx
Here's the write-up of the panels:
Panel One: Issues in the Certification of Class Actions
A. Context and introduction by moderator Richard Nagareda, professor of law, Vanderbilt University School of Law
B. Certification Procedures after IPO and Hydrogen Peroxide (Richard Marcus, Horace O. Coil Chair in Litigation, University of California Hastings College of the Law)
C. Game Theory, Opt-Out Rights, and the Indivisibility of Remedies (Jay Tidmarsh, professor of law, Notre Dame University School of Law)
D. Solving Choice-of-Law Issues in State-Law Class Actions (David Rosenberg, Lee S. Kreindler Professor of Law, Harvard Law School)
E. Aggregate Litigation's Jurisdictional Confusion
(Patrick Woolley, Beck, Redden & Seacrest Professor, University of Texas School of Law)
F. Response: Richard Nagareda
Panel Two: Other Issues Attending the Use of Class Actions
A. Context and introduction by moderator Robert Klonoff, dean and professor of law, Lewis & Clark Law School
B. Evaluating the Fairness of Class-Action Settlements (Alan Morrison, Lerner Family Associate Dean for Public Interest and Public Service Law, The George Washington University Law School)
C. Shady Grove, Erie, and Statutory and Contractual Limitations on Class Actions. (Linda Mullenix, Morris & Rita Atlas Chair in Advocacy, University of Texas School of Law)
D. Precluding Abandoned Claims in Class Actions (Ed Sherman, W.R. Irby Chair in Law, Tulane University Law School)
E. Response: Robert Klonoff
Panel Three: Non-Class Aggregate Litigation
A. Context and introduction by moderator Samuel Issacharoff, Bonnie and Richard Reiss Professor of Constitutional Law, New York University School of Law
B. Aggregation and Privatization of Enforcement (Judith Resnik, Arthur Liman Professor of Law, Yale Law School)
C. Group Consensus, Individual Consent: Governance in Nonclass Aggregation (Elizabeth Chamblee Burch, assistant professor, Florida State University College of Law)
D. Rethinking Adequacy of Representation: Lessons for Class Actions and Aggregate Litigation (Robert Bone, G. Rollie White Teaching Excellence Chair in Law, University of Texas School of Law)
E. Response: Samuel Issacharoff
Panel Four: Ethics in Aggregate Litigation
A. Context and introduction by moderator Charles Silver, Roy and Eugenia C. McDonald Endowed Chair in Civil Procedure, professor of government, University of Texas School of Law
B. Ethical Issues in the Aggregate Settlement of Related and Unrelated Claims (Thomas Morgan, Oppenheim Professor of Antitrust and Trade Regulation Law, The George Washington University Law School)
C. The Need for Greater Ethical Rules in Class-Action and Other Agregated Litigation (Nancy Moore, Nancy Barton Scholar, professor of law, Boston University School of Law)
D. Ethical Constraints on Initiating and Resolving Non-Class Aggregate Litigation (Lester Brickman, professor of law, Benjamin N. Cardozo School of Law)
E. Mass Settlements and Informed Consent (Howard Erichson, professor of law, Fordham University School of Law)
F. Response: Charles Silver
February 10, 2010
IL Supreme Court Declares Damage Caps Unconstitutional
The case is Abigaile Lebron, a minor, et al. v. Gottlieb Memorial Hospital, et al., Nos. 105741, 105745, Ill. Sup. decided February 4, 2010. The basis of the decision is that damages caps violate separation of powers.
h/t George Conk & From the Jury Blog
Shnoor on Loss of Chance Claims
Boaz Shnoor has posted "Loss of Chance: Behavioral Analysis of the Difference Between Medical Negligence and Toxic Torts." Here is the abstract:
In recent years, more courts have allowed claims for "loss of chance" (LOC) in medical negligence claims, while denying it in other cases, including toxic torts. At the same time, most of the legal theoretical literature supports recognizing LOC in toxic torts, and claims that recognizing LOC in toxic torts is at least, if not more, advantageous than recognizing it in medical negligence.
This article aims to explain this intriguing gap between theory and practice using behavioral law tools. The article claims that the differences in the way courts emotionally react to these kinds of cases leads courts to act differently in cases where current law does not allow them to rule in favor of the plaintiff and against the defendant. In medical negligence cases, courts strongly feel that defendants' negligent behavior is an outrageous betrayal of trust and that the plaintiffs' unique situation is so unfair as to justify punishing the responsible person. Therefore, they seek new legal ways to find the defendant liable, and are inclined to adopt new liability theories when causation was not proved. In contrast, courts do not feel so strongly about toxic torts cases, since no trust is involved and the plaintiff did not expect anything out of the polluter in the first place. Therefore, their inclination to adopt new liability theories that will allow for a verdict in favor of the plaintiff in the absence of proof of causation is much weaker.
The above analysis has major implications for behavioral law analysis: it emphasizes the pervasiveness of behavioral elements in the legal decision making process; it shows that the willingness of courts to change the law is influenced by behavioral effects; and it can aid theorists and lawyers in identifying situations in which the courts would be susceptible to changing the law. Finally, it can aid in predicting in which cases the LOC doctrine has better chances to be accepted in the future - in situations involving betrayal, where the negligent behavior of the defendant is anomalous compared to the usual behavior in the defendant's reference group, and the plaintiff's damage is exceptional.
February 9, 2010
Bebchuck & Klement on Negative Value Suits
Lucian Bebchuck (Harvard) and Alon Klement (Radzyner School of Law & B.U.) have posted an encyclopedia entry on Negative Value Suits on SSRN. Here is the abstract:
We review the literature on negative-expected-value suits (NEV suits) – suits in which the plaintiff would obtain a negative expected return from pursuing the suit all the way to judgment. We discuss alternative theories as to why, and when, plaintiffs with NEV suits can extract a positive settlement amount. In particular, we explain how such a plaintiff can extract a positive settlement due (i) asymmetry of information between the parties, (ii) divisibility of the plaintiff's litigation costs, (iii) upfront costs that the defendant must incur before the plaintiff incurs any costs; (iv) expectation that the arrival of information during the course of the litigation may turn the suit into a positive-expected-value one, (5) reputation that enables the plaintiff to bind itself to going to trial if the defendant refuses to settle; or (6) the plaintiff’s having a contingency fee or retainer arrangement with its lawyer.
Class Actions Against Toyota
February 8, 2010
Abraham on the Four Conceptions of Insurance
Kenneth Abraham has an enlightening guest post on TortsProf Blog called "Four Conceptions of Insurance." The relationship between the tort system and insurance systems is fascinating and important. More work needs to be done in this area.
February 7, 2010
93% Reduction in Punitive Damages Award in Prempro Case
Bloomberg reports new developments in the prempro litigation. Judge Norman Ackerman of the Philadelphia Court of Common Pleas issued an order cutting the punitive damages jury award in Barton v. Wyeth from $75 million to $5.6 million. Bloomberg reports:
Besides cutting the punitive damage award, Ackerman also added more than $1.2 million in interest to Barton’s $3.7 compensatory damage award, according to the docket entry. That brings the award’s total to $4.9 million, the judge noted in the entry.
The case is Barton v. Wyeth Pharmaceuticals Inc., 040406301, Court of Common Pleas, Philadelphia County, Pennsylvania.
If anyone has the opinion, please contact me. ADL